Citation Nr: 1807366 Decision Date: 02/05/18 Archive Date: 02/14/18 DOCKET NO. 11-32 100 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for a sleep disorder, to include hypersomnolence and sleep apnea. 2. Entitlement to service connection for diabetes mellitus, to include as secondary to a sleep disorder. 3. Entitlement to a compensable rating for sinusitis. REPRESENTATION Appellant represented by: Adam S. Neidenberg, Attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD K. Vuong, Associate Counsel INTRODUCTION The Veteran had active military service from December 1993 to February 1995. This matter comes to the Board of Veterans' Appeals (Board) from rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. In May 2014, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript is of record. This case was previously before the Board in June 2015. Accordingly, the appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Initially, the Board notes that additional evidence was received after the last RO adjudication of the appeal in a supplemental statement of the case (SSOC) issued in November 2015. That evidence consisted of VA treatment records directly pertinent to the issues now on appeal, including entitlement to an increased rating for sinusitis. A waiver of RO jurisdiction is not of record. See 38 C.F.R. §§ 20.1304 (2017). As the appeal is being remand for other reasons, the RO will have an opportunity to review these records in the first instance. Additionally, the prior Board Remand of June 2015 directed the VA to request in-patient records for the Veteran's hospitalization at the Balboa Naval Hospital from any appropriate source. The RO attempted to obtain those records from the Naval Medical Center (Balboa Hospital) and in an April 2016 response, the Naval Medical Center in San Diego stated that medical records had been retired to the National Personnel Records Center (NPRC). There does not appear to have been a follow-up request for records to NPRC. As such, the appeal is being remanded so that the RO can contact NPRC for the records. Finally, an addendum opinion is needed for the claimed sleep disorder. The Veteran underwent an examination for mental disorders in September 2015. The examiner determined that the Veteran does not have a current diagnosis of hypersomnolence disorder, but noted that it is reasonable to assume he met the diagnostic criteria for such disorder prior to his use of a CPAP machine. The Board notes that the requirement of a current disability is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim. McClain v. Nicholson, 21 Vet. App. 319 (2007). Accordingly, it appears that the Veteran has a current disability of hypersomnolence disorder. Moreover, the examiner noted that she had reviewed an service treatment records, to including a medical board exam/narrative summary dated July 26, 1994, and Veteran was diagnosed with hypersomnolence disorder. An addendum opinion is needed as to whether such disorder is etiologically related to service, to include the diagnosis of hypersomnolence therein. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and request that he identify any further pertinent medical treatment related to his sleep disorder, sinusitis, or diabetes mellitus. If other records are identified, obtain authorization for such records. Also, update the file with any relevant VA treatment records since March 2017. If these records or other identified records are unavailable, the Veteran's claims file must be clearly documented to that effect and the Veteran must be notified in accordance with 38 C.F.R. § 3.159 (e) (2017). 2. Request from NPRC any in-patient records for the Veteran's hospitalization at the Balboa Naval Hospital for the purposes of sleep studies. If these records are unavailable, the Veteran's claims file must be clearly documented to that effect and he must be notified in accordance with 38 C.F.R. § 3.159 (e) (2017). 3. After associating any additional pertinent evidence with the claims folder, return the claims file, and a copy of this remand, to the September 2015 VA examiner for an addendum opinion. Send the file to another appropriately qualified VA examiner if she is unavailable. If a clinical evaluation is deemed necessary to answer the questions presented, one should be scheduled. The examiner is asked to state whether it is at least as likely as not (at least a 50 percent probability or greater) that the Veteran's current hypersomnolence disorder (which was present prior to CPAP usage) is either etiologically related to or, a progression of the hypersomnolence disorder (or the dyssomnia, not otherwise specified) which she indicated was diagnosed during service. A complete rationale must be provided for all opinions offered. If the opinion cannot be offered without resort to mere speculation, the reason for this should be fully explained in the examination report. 4. Finally, readjudicate the appeal. If service connection is granted for a sleep disorder, undertake any additional development required to adjudicate the claim for diabetes mellitus on a secondary basis. If any of the benefits sought are not granted, furnish the Veteran and his attorney with an SSOC and afford them an opportunity to respond. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). _________________________________________________ D. JOHNSON Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2017).